Before
the Court is the Magistrate Judge's Report and
Recommendation, dated April 28, 2017 (the
“Report”). (ECF No. 118.) The Court referred
three motions, filed by Defendants MK Holding, Inc. and
Regions Financial Corporation, to the Magistrate Judge for a
determination: (1) Defendants' Rule 37(d) Motion for
Sanctions Due to Plaintiffs' Failure to Respond to
Discovery (the “Discovery Sanctions Motion”) (ECF
No. 70); (2) Defendants' Motion to Exclude Expert Report
and Testimony of P. Richard Evans (the “Exclusion
Motion”) (ECF No. 72); and (3) Defendants' Rule
37(c) Motion for Sanctions Due to Plaintiffs' Failure to
Comply with Rule 26(a)(3) and this Court's Order (the
“Pretrial-Disclosure Sanctions Motion”) (ECF No.
108). The Report recommends, as a sanction, that this action
be dismissed for “Plaintiffs' counsel's
repeated failure to participate in the discovery process and
failure to obey orders of the Court.” (ECF No. 118 at
1.) On May 12, 2017, Plaintiffs Ceil Walker Norris, Walker
& Associates, Inc., and the Ceil T. Walker Revocable
Trust filed an “Appeal of the Magistrate Judge's
Report and Recommendation” (the
“Objections”). (ECF No. 121.) Defendants
responded on May 26, 2017. (ECF No. 122.) Without seeking
leave of Court, Plaintiffs filed a reply in support of their
Objections on June 2, 2017.[1] (ECF No. 123.)

For the
following reasons, the Report is ADOPTED, Defendants'
Discovery Sanctions Motion, Exclusion Motion, and
Pretrial-Disclosure Sanctions Motion are GRANTED, and this
case is DISMISSED.

I.
BACKGROUND

The
Magistrate Judge found the following facts relevant to
Defendants' Discovery Sanctions Motion, to which
Plaintiffs do not object:

Plaintiffs filed this action against Defendants on December
1, 2008 generally alleging that MK Holding breached its
duties as Trustee of the Plaintiff Trusts by investing
Plaintiffs' assets in certain Bond Funds. This case was
consolidated in MDL proceedings on July 10, 2009.

On February 5, 2016, Defendants served Plaintiffs with their
First Interrogatories, Request for Production of Documents
and Request for Admissions. Plaintiffs failed to timely
respond by the deadline of March 4, 2016. On March 11, 2016,
Defendants sent Plaintiffs' counsel a letter notifying
Plaintiffs that the Requests for Admission were deemed
admitted due to Plaintiffs' failure to respond, and asked
that Plaintiffs respond to the Request for Production and
Interrogatories by March 28, 2016. Plaintiffs did not respond
to Defendants' letter, nor did Plaintiffs respond to the
follow up letter on March 31, 2016. A status conference was
held April 4, 2016 wherein the Court directed the parties to
provide additional discovery to one another by April 18,
2016, however Plaintiffs again failed to respond.

On April 25, 2016, Defendants sent Plaintiffs a third letter
attempting to elicit the past-due discovery responses. In
response, on May 5, 2016, Plaintiffs provided responses to
Defendants' Interrogatories and some responsive
documents. On May 23, 2016, Defendants sent Plaintiffs a
letter identifying the deficiencies in Plaintiffs'
production and asking that Plaintiffs correct the
deficiencies by May 27, 2016. Plaintiffs did not respond.

On May 31, 2016, Defendants engaged Plaintiffs in a telephone
call in an attempt to resolve the discovery issues.
Plaintiffs agreed to produce written responses to
Defendants' Requests for Production and to produce
additional responsive documents. Plaintiffs finally provided
additional discovery on June 8, 2016 which was insufficient.

(ECF No. 118 at 2.)

Thereafter,
Defendants engaged Plaintiffs through a series of emails and
telephone calls in an attempt to obtain the withheld
discovery. Defendants emailed Plaintiffs on June 9, 2016,
prompting a telephone call in which Plaintiffs agreed to
produce additional documents or responses and, as to certain
document production requests, confirm in writing that, after
conducting a good faith search, they had no additional
documents. (ECF Nos. 65-8, 65-9.) Plaintiffs failed to
perform. (ECF No. 65-10.) On June 15, 2016, Plaintiffs again
agreed, during a telephone call with Defendants, to produce
the documents and responses promised. (Id.) On June
22, 2016, Defendants emailed Plaintiffs and asked them to
bring copies of all responsive documents Plaintiffs had
agreed to produce to a deposition scheduled the following
day. (ECF No. 65-11.) Plaintiffs again failed to produce the
requested documents and information. (ECF No. 65-12.) On June
25, 2016, Defendants emailed Plaintiffs informing them that,
if the requested items were not produced by June 27, 2016,
Defendants would file a motion to compel. (Id.)

As the
Report discusses, on June 28, 2016, after Plaintiffs had
failed to produce the requested items, Defendants filed a
motion to compel production of all documents responsive to
Defendants requests for production and responses to
Interrogatories Nos. 22 and 23 (the “Motion to
Compel”). (ECF No. 65 at 6-7.) Plaintiffs failed to
respond to that motion. (ECF No. 67 at 1.) On July 21, 2016,
the Court granted Defendants' Motion to Compel and
provided:

The Plaintiffs are ordered to (1) produce responsive
documents to each of Defendants' Requests for Production
or to confirm in writing that, following a good faith search,
no responsive documents exist; and (2) provide Defendants
with the information sought in Defendants'
Interrogatories Nos. 22 & 23 within fourteen days of the
date of this order.

The Plaintiffs are warned that, henceforth, failure to comply
with proper discovery requests, discovery obligations, or
orders of this court will lead to dismissal of the complaint.

(the “July 2016 Order”) (Id. at 2.)

The
Report finds that, “[f]ollowing this Order, Plaintiffs
produced an additional set of documents but failed to provide
written confirmation that they had conducted a good faith
search and produced all responsive documents, nor did they
provide written responses to Interrogatory Nos. 22&23, in
contravention of the Court's Order.” (ECF No. 118
at 3.)

Addressing
Defendants' Exclusion Motion, the Magistrate Judge found
the following facts, which Plaintiffs generally do not
dispute:

On August 16, 2016, disclosure of expert witnesses, pursuant
to the parties' Scheduling Order and Federal Rule of
Civil Procedure 26(a)(2), was due for “Plaintiff (or
any party with burden of proof.)” Plaintiffs did not
provide any expert disclosures. On September 16, 2016, the
disclosure of “Defendant's (or opposing party) rule
26(a)(2) expert information” was due, and Defendants
met this deadline, serving [Plaintiffs] with their expert
report on that date. On October 14, 2016, Plaintiffs served
Defendants with a report that they classify as a rebuttal
expert report.

(Id.) Plaintiffs' counsel acknowledges that the
expert report Plaintiffs furnished Defendants did not include
the expert's curriculum vitae, a list of cases in which
he had testified, or the terms of his compensation. (ECF No.
121-1 ¶ 9 at 3.) Plaintiff's counsel provided that
information after Defendants had filed the Exclusion Motion.
(Id.)

Addressing
Defendants' Pretrial-Disclosure Sanctions Motion, the
Magistrate Judge found: “The present case was set for
trial on April 17, 2017. Accordingly, Plaintiffs were
required to disclose their exhibits and witnesses they
intended to present at trial by March 20, 2017. Plaintiffs
missed this deadline.” (ECF No. 118 at 3.) The
Magistrate Judge found that “Defendants did not receive
Plaintiffs' exhibit or witness lists until two business
days before this Court's deadline for filing motions in
limine.” (Id. at 9; see ECF No. 86 at 4.) Two
business days before the motions-in-limine deadline was March
30, 2016.[2] Plaintiffs do not object to the Magistrate
Judge's finding that they did not disclose their trial
exhibits and witnesses by March 20, 2017. (See ECF No. 121 at
10-11.)

The
Magistrate Judge found that Plaintiffs' counsel had
failed to timely respond to requests and interrogatories, in
violation of Rule 37(d), and had failed to comply with the
Court's July 2016 Order, in violation of Rule
37(b).[3] (ECF No. 118 at 4.) The Magistrate Judge
considered whether dismissal would be an appropriate sanction
for Plaintiffs' failure to comply with discovery
obligations based on the following factors:

(1) whether the party's failure to cooperate in discovery
is due to willfulness, bad faith, or fault;

(2) whether the adversary was prejudiced by the dismissed
party's failure to cooperate in discovery;

(3) whether the dismissed party was warned that failure to
cooperate could lead to dismissal; and

(4) whether less drastic sanctions were imposed or considered
before dismissal was ordered.

(Id. (quoting Harmon v. CSX Transp., Inc.,
110 F.3d 364, 366-67 (6th Cir. 1997)).) The Magistrate Judge
recommends finding that all four factors have been met and
that dismissal is proper. (Id. at 4, 6.) The
Magistrate Judge also recommends that dismissal would be
proper under Rule 37(c) because Plaintiffs failed to disclose
their trial exhibits and witnesses 30 days before trial, as
required by Rule 26(a)(3). (Id. at 8-9.) The
Magistrate Judge found the “sanction of dismissal
appropriate given Plaintiffs' counsel's extreme
pattern of abuse of deadlines, failure to comply with Court
Orders, and clear warning given that failure to do so would
lead to dismissal.” (Id. at 10.) If the Court
were to find that dismissal is not an appropriate sanction,
the Magistrate Judge recommends granting Defendants'
Exclusion Motion and excluding the proposed testimony and
report of Plaintiffs' expert witness under Rule 37(c)(1)
because Plaintiffs failed to timely disclose their expert
and, when they did so, the disclosure was inadequate, both in
violation of Rule 26(a)(2). (Id. at 6-8.)

Plaintiffs
object to the Magistrate Judge's recommendations and
contend that Defendants' sanctions motions should be
denied. (ECF No. 121 at 3.) Defendants counter that the
recommendations should be adopted and the case dismissed or
that, alternatively, Plaintiffs should be prohibited from
calling their witnesses, including their expert witness, or
presenting their exhibits at trial. (ECF No. 122 at 30.)

II.
LEGAL STANDARDS

Congress
enacted 28 U.S.C. § 636 to relieve the burden on the
federal judiciary by permitting the assignment of
district-court duties to magistrate judges. See United
States v. Curtis,237 F.3d 598, 602 (6th Cir. 2001)
(citing Gomez v. United States, 490 U.S. 858, 869-70 (1989));
see also Baker v. Peterson, 67 F. App'x 308, 310
(6th Cir. 2003). For dispositive matters, including motions
to involuntarily dismiss an action, “[t]he district
judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); 28 U.S.C. §
636(b)(1). For nondispositive pretrial matters, the district
judge may reconsider the magistrate judge's disposition
if it is “‘clearly erroneous or contrary to
law.'” Curtis, 237 F.3d at 603 (quoting 28
U.S.C. § 636(b)(1)(A)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;On
de novo review, after reviewing the evidence, the
court is free to accept, reject, or modify the magistrate
judge&#39;s proposed findings or recommendations. 28 U.S.C.
&sect; 636(b)(1). The district court is not required to
review -- under a de novo or any other standard --
those aspects of the report and recommendation to which no
objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
The district court should adopt the magistrate judge&#39;s
findings and rulings to which no specific objection is filed.
Id. at 151. Arguments made in an objection to a
magistrate judge&#39;s report and recommendation that were
not first presented to the magistrate judge for consideration
are deemed waived. See, e.g., Becker v. Clermont ...

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